Gujarat High Court
State Of Gujarat vs Pravinbhai Naranbhai Prajapati on 17 May, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 245 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
PRAVINBHAI NARANBHAI PRAJAPATI & ANR.
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Appearance:
MR DHAWAN JAYSWAL, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR ANKIT SHAH(6371) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 17/05/2024
ORAL JUDGMENT
1. By way of this Appeal, the Appellant - State is aggrieved by the judgment and order of acquittal dated 28.02.2007 of the learned Principal Sessions Page 1 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined Judge, Mahesana in Criminal Appeal No.20 of 2006 whereby the respondents herein were acquitted of the offences punishable under Sections 18(C), 18(A)(1), 18(A)(6) and 18(A) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to in short as 'the Act').
2. The case in brief and the incident which occurred on 24.06.2003 are as under :-
2.1. The complainant Drug Inspector Mr. J.P. Patel received a secret information that the respondents herein did not have any license or permission for sale of Oxytoxin Injection and inspite of the above fact, it is alleged that the respondents were selling the said injection without any permission and license.
Hence, a raid was carried out by the Drug Inspector Mr. P.G. Doshi at the premises of the respondents, i.e. M/s. Brahmani Kirana Stores, Indiranagar, Village Sametra, Taluka and District Mahesana and during the raid, the respondents were found in conscious possession the muddamal injection manufactured by Bonet Pharmaceuticals, Janakpur Road, Gaya bearing Batch No.B-1-U. Necessary panchnama was drawn, Page 2 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined muddamal was recovered and sent to the Public Analyst, Vadodara for the purpose of analysis. It is further the case of the prosecution that as per Report of Public Analyst, Vadodara, the muddamal injection were found sub-standard. Therefore, on the basis of the Report sent by the Public Analyst, as it was substandard, the complainant informed the respondents to produce bills and vouchers for purchase of muddamal injection. The respondents were unable to produce the said license or permission and therefore, a complaint was lodged before the Court of the learned Chief Judicial Magistrate, Mehsana and numbered as Criminal Case No.4557 of 2003 under the aforesaid Sections.
2.2. The learned competent Court acquitted the respondents accused and being aggrieved by the aforesaid judgment and order, the above Appeal has been preferred.
2.3. At the time of the trial, the prosecution examined the following witnesses :-
Page 3 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined Particulars Exhibit Jagdishkumar Prahladbhai Patel (Complainant) 9 Maganbhai Mahadev Chaudhary (Panch Witness) 24 Pradipkumar Govindlal Doshi 27 The prosecution also relied upon various documentary evidence, some of them are :-
Particulars Exhibit Order given to take action against the 10 accused Copy of the transfer order of the complainant 11 Copy of the appointment order of the 12 complainant Report (Form No.13) regarding the seizure of 14
Oxytoxin Injection from the accused Photocopy of the detailed panchnama 25 Original Panchnama 32 Original letter written by the accused - 33 Rameshbhai stating that there is no license for sale of the muddamal injection Photocopy of the Electricity Bill of the shop 34 of the accused Receipt of Rs.30/- paid towards sample 35 Breaking open of the seal and presentation 38 thereof.Page 4 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024
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3. Learned Additional Public Prosecutor Mr. Dhawan Jayswal has submitted that the learned Judge has committed an error in appreciating the fact that the accused persons sold the muddamal injection without obtaining license and permission and thereby committed an offence under the above Sections. It is further submitted that the competent Court has held that there is breach of mandatory provisions of Section 13(2)(b) and Rule 4 of the above Act. It is also submitted that the learned Court ought to have appreciated that the accused have not produced any documentary evidence so as to show that they are agriculturists and doing the business of cattle keeping. The respondents were found in large quantities of injections and therefore, it can be inferred that these were not for personal use. It is further submitted that the respondents without obtaining permission of the competent authorities were selling the injections, which would ultimately affect the health of the cattle.
4. Learned Additional Public Prosecutor submitted that while passing the impugned judgment and order acquitting the respondents has relied mainly on the Page 5 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined ground that the sample was collected by the FSL Department after the period of expiry date, i.e. on 20.02.2002 whereas the date of manufacturing of the muddamal injection was December 2000 and the expiry date was after a period of two years. The report was submitted on 20.02.2003. Therefore, it is submitted that the Report of the Public Analyst was held to be unreliable and not trustworthy. It is further submitted that the learned Judge erred in holding that the accused were deprived of the right to Notice under Section 13(2) of the Act so as to challenge the Report of the Public Analyst and therefore, the same is in breach of the mandatory provisions of the above Act. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge qua the acquittal of the respondents should be upturned by this Court.
5. On the other hand, learned Advocate appearing for the respondents accused has stated that no error can be said to be committed by the learned Judge in the judgment and order of acquittal, more particularly in Page 6 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined light of statutory provisions of the Act. Placing reliance on Sections 23 and 24 of the Act, it is submitted that the sample was collected from the respondents on 20.02.2002, after the period of expiry date and thereafter, the Report of the same was submitted on 20.02.2003. It is further submitted that no notice was issued to the accused after drawing of the sample. It is therefore, submitted that in absence of following the mandatory provisions of Act, the accused have been deprived of the valuable right of sending the sample to the Central Laboratory as provided under the Act. In support of his submissions, learned Advocate for the respondents has placed reliance on the decision of this Court in the case of Rajesh Ramanlal Shah, Ex-Director of M/s. Divine Life Care Pvt. Ltd. and Another v. State of Gujarat and Others reported in 2020(2) G.L.R. 1491 wherein it was held that the accused was deprived of his valuable right under Section 25(4) of the Act to get the sample retested by the Central Drugs Laboratory. Relying on Section 25(3) of the Act, it was held by the Court the said Section obliges the Drug Inspector with whom other parts of sample Page 7 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined remaining before filing of complaint to send sample to Central Drugs Laboratory for retest when accused declared his intention to adduce evidence in controversion of the report of Government Analyst. Therefore, it is submitted that the judgment and order of the learned Sessions Judge requires no interference by this Court.
6. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6 S.C.C. 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under :-
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."
7. Further, in the case of Chandrappa Vs. State of Karnataka reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles :
Page 8 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge :
[1] An appellate Court has full power to review, re- appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the Page 9 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
8. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the Trial Court.
9. Even in the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under :-
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Page 10 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re- appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
10. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
11. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Page 11 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined Hemareddy, reported in AIR 1981, SC 1417, wherein it is held as under :-
"This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
12. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors Vs. State of Karnataka, reported in JT 2013(7) SC 66.
13. This Court also relies on the decision of the Hon'ble Apex Court in the case of Mallappa and Others v. State of Karnataka reported in AIRONLINE 2024 SC 80 wherein it was held in Paragraph 36 as under :-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which comes into play while deciding an Appeal from acquittal could be summarized as :
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be Page 12 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
14. I have heard learned Advocates for the parties and perused the record of the case. While going through the well reasoned judgment and order of the learned Sessions Judge, it is admitted fact that the product - Oxytoxin injection was manufactured in December 2000 with a shelf life of 2 years only. The sample was taken on 20.02.2002 which was stored with the accused. The panchnama which is produced at Exhibit 25 was drawn on even date, the sample Page 13 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined was sent to the Government Laboratory for analysis on 20.02.2002 which was retained by the authority for a period of one year and the notice came to be issued to the accused after a period of one year.
15. In light of the aforesaid, it can be inferred that by the time the notice was issued, the sample was drawn from an expired product and the accused was deprived of the valuable right of sending the sample for analysis before the Central Laboratory. Therefore, it is appropriate to refer to the impugned judgment and order passed by the learned Sessions Judge.
16. The translated version of Paragraph 18 of the impugned judgment and order reads as under (true translation) :-
"(18) When the original complainant Mr. Jagadishkumar Prahaladbhai Patel has admitted the fact in his deposition that the date is written as December-2000 on the muddamal seized from the possession of the appellants and the date of expiry is shown as two years from December-2000. Thereafter, the complainant sent the muddamal seized from the appellants for analysis and report thereof was received on 20/02/2003. Therefore, it emerges from the Page 14 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined evidence on the record that when the complainant seized muddamal stock from the place of business of the appellant, the said muddamal had already expired and therefore, the sample cannot be examined once the date of expiry is over. Despite that, the complainant seized muddamal even after the date of expiry and the analysis report thereof has been received after a year. Therefore, the analysis report has been received to the complainant after one year and two months of date of expiry. Moreover, when the complainant received analysis report, the complainant requires to inform the appellant by notice if he wants to send second sample to the Central Laboratory.
However, no such notice has been given by the complainant to the appellant and one sample lying with him was kept with him instead of sending the same to the court having jurisdiction and he produced the same in his deposition on 08/12/2005. Thus, it transpires from the evidence on the record that the appellant was not given a chance to send one sample to the Central Laboratory. As per the observation of the Hon'ble High Court of Gujarat in the case of M/s. Wilco Laboratories versus State of Gujarat reported on 1975-Cr.L.J.-965 produced by the appellants, the accused was deprived on the ground of delay in complaint by virtue of rights conferred under Section- 25(4) of the Drugs and Cosmetics Act, therefore, the analysis report cannot be considered to be conclusive. Similarly, in the case of State of Gujarat versus M/s. Alpine Industries reported on 2002(3)-GLR-2561 of the Hon'ble Gujarat High Court, it was observed under Section-18 of the Drugs and Cosmetics Act that when the accused are unable to send sample for analysis in Page 15 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined Central Laboratory due to ignorance and negligence of the Drug Inspector, it can be considered that the order to acquit the accused would be fair and just. In the instant case, considering the note and evidence in the order of the lower court, it appears that the drug inspector made the right of the appellant to send the second sample within 28 days to the Central Laboratory impossible by his ignorance and negligence and therefore, though the appellant were entitled to be acquitted, but it appears that not doing so, the order of the lower court to hold guilty by framing the charge against the appellant was legally erroneous. In the case of State of Gujarat versus Gafurbhai Bhikhubhai Mansuri reported on 2005(3)-GLH-409, the Hon'ble High Court has observed that the provisions of Section-13(2-B) and Rule-4 are mandatory. Therefore, the accused are entitled to its benefit if the same are not complied with. Now, in the present case, the original complainant has not followed the mandatory provisions of the Act. On the contrary, it is proved from the evidence on the records that he has violated such mandatory provision and therefore, though the appellants are legally entitled for benefit, lower court has passed erroneous order convicting the appellant holding them guilty and therefore, as this is the fit case to interfere the order of the lower court, I give answer of issue no.1 in affirmative."
17. Section 25(3) of the Act reads as under :-
"Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence Page 16 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under section 18A has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report."
18. Section 25(4) of the said Act reads as under :-
"Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused: cause the sample of the drug or cosmetic produced before the Magistrate under sub-section (4) of section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein."
19. In the case of Rajesh Ramanlal Shah (supra), the position of law has been laid down as under in Paragraphs 33 and 34 as under :-
"33. Scanning through the complaint, it is very clear that sample was drawn on 8-1-2004 and shelf-life of it Page 17 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined was to expire on 30-10-2004. However, there is no averment in complaint that copy of Government Analyst Report or any portion of sample is served to the applicants prior to filing of the complaint i.e. before 12-8-2009. Therefore, applicants as manufacturers can apply for retest through Central Drugs Laboratory as provided under Sec. 25(4) of the Act only when they will be served with the summons of the case filed against them i.e. after shelf-life of the sample was over. Admittedly, they are denied of their valuable right under Sec. 25(4) of the Act to have sample retested by Central Drugs Laboratory.
34. In view of the reported decisions as referred to hereinabove in the cases of M/s. Medicamen Biotech Ltd.; Vilco Laboratories and Laborate Pharmaceuticals India Ltd. (supra), prosecution launched against the applicants and process issued against them are required to be quashed and set aside."
20. The procedure as prescribed under Section 25(3) of the Act has been given a go-by, the shelf life of the sample had expired on 20.02.2002, before the notice came to be served to the accused on 20.02.2003 and the accused could not give the sample for further examination to the Central Laboratory. In the facts of the present case, and having gone through the impugned judgment and order, the competent Court held that at the time when the sample was drawn, the same was an Page 18 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024 NEUTRAL CITATION R/CR.A/245/2008 JUDGMENT DATED: 17/05/2024 undefined expired sample. In addition, on perusal of the documentary evidence produced on record, this Court finds that the sample was drawn, the life of the sample was of two years having produced in the year 2000 and the shelf life of the product would be till December 2002 but the same would not come to the rescue of the prosecution in light of provisions of Sections 25(3) and 25(4) of the Act. Apart from that, the learned Additional Public Prosecutor for the appellant - State is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
21. In that view of the matter and in view of the aforesaid discussion as well as considering various decisions as cited above, I am in complete agreement with the reasons recorded by the learned competent court and in my view, the impugned judgment and order is just, legal and proper and requires no interference by this Court.
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22. The Appeal is devoid of merits and is dismissed accordingly. The judgment and order of acquittal dated 28.02.2007 of the learned Principal Sessions Judge, Mahesana in Criminal Appeal No.20 of 2006 is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.
Sd/-
(VAIBHAVI D. NANAVATI, J) CAROLINE Page 20 of 20 Downloaded on : Fri Jun 14 20:40:20 IST 2024